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TERMINATE THE FILIBUSTER WITH EXTREME PREJUDICE

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From the first time I became aware of the use of the filibuster (which was during the early-to-mid-1960's, when the filibuster was used successfully to block civil rights legislation), I have considered the filibuster to be an unjustified parliamentary maneuver, regardless of which party may be in the ascendancy at any particular time. The use of the filibuster by Democratic Senators to derail some judicial nominees of recent Republican Presidents was not very successful in holding back the tide of Republican ideologues who became Federal judges. Irrespective of the noble cause that may be attributed to a particular use of the filibuster, the filibuster remains antithetical to the goals of representative democracy. The filibuster also provides an illegitimate excuse for the abject failure of the Democrats in the Senate to achieve any meaningful reform of our misdirected public policies.

Senator Tom Harkin (D-IA) and Senator Jeanne Shaheen (D-NH) have introduced a resolution in the Senate to modify the filibuster. The filibuster relies on the Senate's traditional reverence for the concept of unlimited debate. Under current Senate rules, 67 votes are required to change the rules of procedure in the Senate, and 60 votes are required to invoke cloture (i.e., to end a filibuster by closing debate through a limitation on additional debate). As reported by Paul Kane in The Washington Post, the resolution introduced by Senator Harkin and Senator Shaheen would officially amend what is known as Rule 22 to establish "a four-step process that would eventually allow a majority of just 51 votes to end debate and move to final passage of a bill. The first such vote, known as a cloture motion, would require 60 votes; if that failed, the next cloture motion on the same legislation would require 57 votes and then, if that failed, the next hurdle would require 54 votes, and the next would require 51."

In response to this effort to amend the filibuster, Senate Majority Leader Harry Reid (D-NV) stated: "I'm totally familiar with his idea (in reference to Senator Harkin). It takes 67 votes, and that, kind of, answers the question." Obviously, the Senate will be unable to get 67 Senators to agree to this proposed change in Senate rules. Senator Reid and most of his Democratic colleagues would like the public to believe that the Senate is helpless to eliminate the filibuster, but this is just another example of the manner in which politicians circumvent the truth. Paragraph 2 of Section 5 of Article I of the Constitution states: "Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member."

Consideration of comity and rules of political etiquette may guide the members of the Senate in determining whether to retain the filibuster in some less onerous form, and even if the Senate were to eliminate the filibuster, the Senate would have to adopt some other procedural rules to prevent endless delay (e.g., there is nothing in the Constitution that requires the Senate to read aloud bills and amendments as part of legislative debate, and reasonable measures can be adopted to limit the number of amendments that a Senator can introduce related to any particular bill). However, there is no credible argument denying that the Senate is the sole authority over the rules of procedure in the Senate. The Senate is also the sole authority over any procedure for making any changes to the rules of procedure for the Senate (including the effective date of any such procedural changes). The Senate can agree that they are bound by certain procedural rules, and the Senate can agree at any time that they are no longer bound by these same procedural rules.

If the Senate were to decide via a simple vote of the majority in the Senate to eliminate the filibuster entirely, and if some disgruntled Senators were to file a lawsuit in Federal Court to enforce the current rules related to the procedure by which the Senate may change the rules of procedure in the Senate, the Federal Courts (including the Supreme Court) would not have the constitutional authority to intervene. And, in the extremely unlikely circumstance in which the Supreme Court might determine that the Senate must abide by current rules of the Senate to determine whether these rules may be changed by the Senate, the Senate could tell the Supreme Court to "GO BUGGER OFF".

The Bill of Rights was primarily designed to make it exceedingly difficult for representatives of any majority from denying certain inalienable rights to any minority. Even after the addition of the Bill of Rights, the original Constitution was more flawed than it is today, but the Constitution does provide a method to correct errors of commission and errors of omission, and this procedure for amending the Constitution is intentionally cumbersome to impede a tyranny of the majority. However, although the Senate had the authority to create the filibuster, and although I am not under any illusion that elimination of the filibuster would eliminate the corruption that permeates the Senate, the filibuster does not have any legal protection other than that which is derived from the voluntary consent of the Senate itself. Any Senator who indicates otherwise is knowingly misleading the public.

 

I am retired after working 33 years as a Claims Representative for the Social Security Administration, and I am a card-carrying member of the ACLU.

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The filibuster should be nailed to the wall and se... by kanawah on Thursday, Feb 18, 2010 at 8:17:49 PM
Republicans, having found that the fillibuster is ... by PrMaine on Friday, Feb 19, 2010 at 8:08:19 AM

 

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